Quick takes on Wednesday's Illinois Supreme Court Criminal opinions

When she was 13 years old, M.A. used a knife to cut her 14-year-old brother after a physical altercation between them. As a result, she was adjudicated delinquent of aggravated domestic battery, aggravated battery, and domestic battery. On appeal, she challenged the registration provisions of the Violent Offender Act on various constitutional grounds.

Asserting an equal protection violation, M.A. argued that juvenile violent offenders were similarly situated to juvenile sex offenders. The Court rejected that assertion, citing to the legislative history of both the Sex Offender Registration Act (SORA) and the Violent Offender Act (VOA).

Specifically, the Court noted that the purpose of the VOA was to remove non-sexual offenders from SORA. Persons who committed violent offenses against children had previously been required to register under SORA, and the legislature determined it was a greater stigma to be categorized as a sex offender and thus enacted VOA to create a separate registry. Because the legislature had determined that violent offenders were not similarly situated to sex offenders, the Court reached the same conclusion. Thus, the equal protection challenge failed.

M.A. also asserted substantive and procedural due process challenges. The Court rejected both. The VOA’s mandatory registration requirement depends only on the offender’s conviction or adjudication of a specified offense and current dangerousness is not relevant or material. Thus, there is no due process right to a hearing to establish non-dangerousness. Likewise, the Court found no substantive due process violation because the registration requirement bears a rational relationship to the purpose of protecting the public from violent offenders against youth.

In a special concurrence, authored by Justice Burke and joined by Justices Freeman, Kilbride, and Theis, the Court invited the legislature to reexamine the VOA “with the same level of scrutiny that it applied to” SORA when it amended SORA in 2007 to address special concerns regarding juvenile offenders. The concurring justices noted that it is “illogical to allow juveniles adjudicated delinquent of violent sexual offenses to petition for removal from the sex offender registry while disallowing the same procedure for juveniles adjudicated delinquent of violent offenses which do not involve a sexual component.” Whether the legislature accepts the Court’s invitation to amend VOA remains to be seen.

For years, practitioners have struggled to comply with the requirements of Illinois Supreme Court Rule 604(d). Most common are errors related to the Rule’s certificate requirement – both in form and in substance.

At issue in H.L., was whether counsel had strictly complied with the Rule’s certificate requirement where counsel’s certificate was not filed prior to or at the time of the hearing on H.L.’s post-admission motion, but rather was filed three weeks later along with the notice of appeal. In a 4-3 opinion, the Supreme Court held that there was compliance with the rule because the only “timing requirement” is that the certificate be filed “with the trial court.”

The Court rejected the minor’s assertion that Supreme Court precedent required prior or contemporaneous filing of the certificate, concluding that the language in People v. Shirley, 181 Ill. 2d 359 (1998) that the certificate’s filing “should precede or be simultaneous with the hearing”was a suggestion but not a mandate.

The Court also refused to find any significance from the order of the various sentences of Rule 604(d). Specifically, the minor argued that the rule first states the requirement that a post-plea motion be filed within30 days, then describes the requirements for such a motion, then states that the court must appoint counsel for an indigent defendant who desires assistance, then sets forth the attorney certificate requirements, and finally states that the motion shall be heard promptly. The Court noted that the minor had cited “no authority holding that the order of sentences in a rule dictates how it must be followed.”

Justice Freeman authored the dissent, joined by Justices Kilbride and Burke. The dissent disagreed with the Court’s construction of the language in Shirley, noting that the purpose of the certificate requirement is to ensure that defense counsel has reviewed the proceedings with the defendant and made necessary amendments to the post-plea motion before the trial court rules on it. The dissent also agreed with H.L. that the sentence structure of Rule 604(d) indicates that the certificate’s filing should precede, or be contemporaneous with, the hearing on the motion.